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COA rules on landowner first-impression issue

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For the first time, the Indiana Court of Appeals needed to decide whether an urban or residential landowner owes a duty to protect neighbors from damage caused by a tree falling from the landowner's property.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, No. 20A03-0908-CV-366, Cindy Cain's home is next to a vacant lot owned by Marjorie Marshall, which John helped to manage. Elkhart code enforcement told them that a tree on the lot needed to come down, so John had a professional arborist inspect the tree. The arborist just visually inspected the tree and determined it didn't need to be taken down. The tree later fell onto Cain's house. Her insurer, Erie, reimbursed her for the repairs and brought a suit against the Marshalls for damages for negligent maintenance of the tree. Marjorie died before the bench trial concluded.

The trial court entered judgment in favor of Erie; John filed a motion to correct error, which the trial court denied.

John argued there was insufficient service of process upon Marjorie. Even though someone else signed the return receipt indicating the notice was received, the service by mail was effective, ruled the appellate court.

John also claimed the trial court erred in finding they owed a duty of care to Cain. Judge Margret Robb wrote it would appear the Restatement (Second) of Torts section 363 forecloses the issue of whether the Marshalls owed any duty to protect Cain from the fallen tree. But that would leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure a dangerous tree just because it was a natural condition of the land. Like several other states, the appellate court adopted a reasoning that departed from the strict application of the rule in context of urban or residential property.

Living in close quarters substantially increases the risk that a falling tree will cause damage or injure someone, and similar to the problem relating to a highway - as mentioned in the Restatement rule - the reduced size of property lots in an urban or residential setting make the burden of time and money to inspect and secure trees relatively minor especially as compared to the potential damage that could result from the tree's fall, she wrote.

The appellate judges held that an urban or residential landowner has the duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners arising from the conditions of trees on his or her property.

The trial court properly applied a duty of reasonable care to the Marshalls, and properly found that sufficient evidence supported the Marshalls breached that duty and that John was jointly and severally liable since he acted as Marjorie's agent in care of the lot.

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  1. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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